Ch 2 Flashcards
How are State Courts set up and organized?
a. Courts of limited jurisdiction
b. Trail Courts (or superior court)
c. Appeal courts (or appellate court)
d. Jurisdiction and Venue
Courts of limited jurisdiction
These courts only deal with certain types of cases. 3 examples…
Subject matter: specific cases e.g. traffic court
Probate court: fights about wills, or someone dies and doesn’t have a will.
Small claims court: dollar limit has to be less than $5,000
Exam:
Not a court of record.
No one is there to record everything that is said and turn it into a written transcript.
If you lose, then take an appeal. It’s basically a trail over again bc theres no transcript, the appeals court won’t know what happened.
Trail Courts (or superior court)
Every county in every state has its own trail courts.
-No dollar limit, no subject matter limit
-Are courts of record (there is a court recorder)
-In MD state trial courts = circuit courts
Exam:
-If you lose in small claims court and want in appeal the retrial is in trail courts.
-Most types of cases are in trail courts
Appeal Courts (appellate court)
Generally, only decide legal questions. Not questions of fact.
In the bigger states there are 2 levels of appeals.
1) Court of appeals –> no do overs
2) State supreme court.
They will try to figure out if the judge or jury messed up. You can’t introduce new evidence.
Jurisdiction and Venue (overview)
In order for a court to hear any case there must be jurisdiction and venue.
What is Jurisdiction?
A courts power to hear a case and issue a binding legal decision. You need 2 out of the 3 types.
How many types of Jurisdiction are there? What are they?
3 types
1st Subject Matter Jurisdiction
2nd In Personam Jurisdiction
3rd In Rem Jurisdiction (over property)
Subject Matter Jurisdiction (State)
ABSOLUTE REQUIREMENT.
Courts power to decide the type of dispute. (e.g. criminal courts cannot hear civil cases)
In Personam Jurisdiction
There are 4 ways to get this, you only need 1.
1. Residency: defendant a resident in the state you’re suing them in.
2. Citizenship: defendant a citizen of the state you’re suing them in?
3. Served with process. (given a compliant and summons in another country or state, even though you have no residency or citizenship).
4. Can sue if sufficient minimum contact in sate. Companies usually consent.
In Rem Jurisdiction (over property)
Jurisdiction based on claims against real property – does not matter where the owner lives. Location always over rules.
Venue
Plaintiff must select Fair and convenient location for the defendant. Usually in the county where the defendant resides or works.
Long arm statue
If you are doing significant business at the state or commit a wrongful act in state x, you can be sued in that state.
Forum selection clause
A paragraph in a business to business contract that designates what court the case will end up in if there’s a dispute about the contract. ( Must be reasonable and valid to enforce)
How do Federal courts vs state courts get subject matter jurisdiction? Exam.
Federal Courts and their Jurisdiction (4 categories)
- Federal district courts
- Specialized Federal Courts
- Courts of Appeal
- Supreme Court
Federal District Courts.
Deal with problems between states; they also handle cases that deal with the Constitution and the laws made by Congress, they lack enforcement powers.
Jurisdiction rules for Federal District Courts (Exam)
Rules for in personam and in rem jurisdiction are pretty much the same for both state and federal court. However, the rules for subject matter jurisdiction are different in federal court.
Subject matter jurisdiction ( federal )
Two most important bases for subject matter jurisdiction in federal court are diversity and federal question.
Diversity Jurisdiction
Diversity jurisdiction exists when suit is between citizens of different states and amount in controversy exceeds $75,000 – changes to keep up with inflation. Diversity also exists in some cases in suits between citizens of a state and citizens or governments of foreign nations, if amount in controversy exceeds $75K
Federal question
Federal question jurisdiction exists if case arises under Constitution, laws, or treaties of U.S. No amount in controversy requirement
Concurrent Jurisdiction
Authority for both state and federal courts to hear and decide cases. Plaintiff picks. Defendant changes. Remove= from state to federal. Remand= from federal to state.
Specialized Federal Courts
Very subject mattered.
Examples: tax court, bankruptcy court, US Court of international Trade, Court of Claims - (If you sue the federal government)
Federal Courts of Appeal
review legal conclusions reached by lower federal districts. Do not engage in fact-finding. Divided into circuits—there are 13 – 11 of them are numbered, plus D.C., plus Federal Circuit
Supreme Court
Highest court - Appellate Court.
~Takes only 80 cases a year, which get’s there through “writ of certiorari”.
~Only 9 judges, appointed by the President.
~5 to 4 vote on controversial matters.
~4 liberal; 4 conservatives and 1 bi.
~If 4 to 4 tie, the lower court decision usually prevails.
-Take cases where there is a split between Federal Court of Appeal on similar issues, and only if circuits disagrees with each other.
-Occasionally takes from State Supreme Courts.
-Occasionally functions as a trial court. Example: One state suing another state
Writ of Certiorari
An order by a higher court directing a lower court to send up a case. Courts can choose whether or not they want to hear the case.
Requirements:
1. Validity of statue is in question.
2. Violation of personal rights under federal law.
3. If any state statute is violating federal statue.
Rare Cases - Supreme Court
In rare cases, Supreme Court has original jurisdiction, which means it acts as a trial court.
Appointment and removal of federal judges
Supreme Court Justices, court of appeals judges, and district court judges are appointed by the president and must be confirmed by the Senate. This is a lifetime appointment. Judges can only be removed by impeachment by House and conviction by Senate, or if they retire or die
For other federal judges, process is different. For example, federal bankruptcy judges are selected by judges on federal courts of appeal and receive 14-year terms
Civil Procedure
Civil procedure is set of rules governing how civil lawsuit is conducted
Preponderance of Evidence
Evidence having the greater weight. NOT having greater quantity.
Steps within a case
- File lawsuit.
- Summons - gets attached to complaint.
- Pleadings: Complaint, Answer and Reply.
- Motions.
- Discovery.
- Status conference.
- Pretrial conference.
- Trial.
Service of summons
A case begins with filing of complaint and service of complaint and summons, which notifies defendant he is being sued. File in court and generally serve by personally handing the complaint and summons to defendant.
If you get served with a compliant and summons you have 3 options.
- Ignore it
- File a motion to dismiss
- File an answer
Ignoring a compliant and summons
Bad idea to ignore it. If you do, there could be a default judgement. This is where you ignore and don’t do anything, and once a certain amount of time has passed the plaintiff will go to the court to ask for a default judgement. This is where the plaintiff gets what he wants. Most of the time the judge will give the defendant another chance and give him another 30 days.
Filing a motion to dismiss
A motion is when you ask the judge to do something. (There are about 5 motions you need to know for the exam). You basically ask the judge to throw the case out on 1 or more legal grounds.
Let’s say you do that and the judge grants (agrees) the motion and throws the case out. The plaintiff can appeal.
If the judge does not grant the motion, you have to file an answer. Which is basically a written response to the compliant where you the defendant go through each of the numbered paragraphs in the compliant.
What if you don’t file a motion to dismiss?
You’re required to file an answer. Or there will be a default.
3 things that are in an answer
a. If you are the defendant, you will respond paragraph by paragraph to what the plaintiff put in the compliant.
b. Answer a list of affirmative defenses. (ex. Statue of limitations has expired)
c. Counter claims. Where you claim back against the plaintiff. (Ex. You go work for Deloitte and do an audit engagement and they client didn’t pay. Then in their answer they’ll argue that they didn’t pay because of auditor malpractice).
What happens after filing a motion to dismiss?
Discovery.
The process where both parties gather evidence to prove their case. There are 4 ways for discovery to occur. (4 types of discovery)
What happens during discovery?
a. Deposition
Is a situation whereby a witness in a case shows up and all the lawyers in the case get to ask the witness a bunch of questions about the case. The witness testifies under oath. If the witness lies, they can be later prosecuted for perjury. They’ll record it if they believe the witness will die.
b. A set of interrogatories
You send to the other side, a set of written questions you want them to answer about the case. Then they are supposed to answer in writing the answers.
c. Set of requests for admissions (RFA)
A lot like interrogatories except, you the party that is responding are forced to either admit or deny what you are being asked.
d. Request for documents
Basically, you send to the other side, a list of documents that you want from them. All of which somebody must tracked down and has to be reviewed by lawyers. This gets very expensive.
Motion to compel (2nd one)
What if he asked for documents X,Y, and Z and I refuse to give it to him? What can he do?
He can file a motion to compel (2nd kind of motion). Is where you ask the court to order the other side to give the documents or information that he asked for.
motion for summary judgement
This happens at the end of discovery. This is when you collect the evidence you got during the discovery process and ends the case without a trail.
If the motion for summary judgment is denied, next is the pretrial conference.
Is a conference with the judge and the lawyers who talk about how the trail will go. What will happen at the trail, and they give a list of witnesses and documents they use at trail. Making it more efficient leaving everyone on the same page. Happens within 90 days of the trail.
Next, we have our Trail. Will there be a jury?
Only if the plaintiff asked for a jury in their compliant or if the defendant asked for a journey in their answer.
If none of them ask for a jury, there won’t be one. And the judge will decide the case.
Voir dire
If there is a jury, there is a process. Voir dire. Lawyers get to ask jurors questions to weed out biased ones or any they don’t want.
General Verdict Form
Jury fills out a form saying who won the case. If it’s the plaintiff, they put how much money they get.
- Alternative is - Special verdict form
They Jury gets asked a series of questions explaining how they got to their decisions
How is it decided if a general verdict or special verdict gets used?
Decided by the judge and lawyers at the pretrial conference.
5 motions
- Motion to dismiss
- Motion to compel
- Motion for summary judgement
- Motion for directed verdict
- Motion for new trail
Motion JNOV
Happens after the jury comes in with a verdict. And if you lose (jury votes against you) you ask the judge to overrule the jury. Judges are allowed to grant motion for JNOW and overrule the jury. Grounds may be juror misconduct ex. Racial bias.
- Motion for new trail
Where you lose the case and ask the judge for a do over with a different jury. Grounds may be juror misconduct ex. Racial bias.
What happens if the defendant won’t pay you?
(at least 3 things you can do).
1. Writ of Execution
2. Order of Garnishments
3. Order of Garnishment regarding wages.
- Writ of Execution
You go into court and say the defendant isn’t paying me, can you order a write of execution authorizing the sheriff to seize the defendant personal property (car, computer) and sell the items at auction and I the plaintiff get the money minus a fee for the sheriff.
- Order of Garnishments
Order of the judge to the defendant’s bank account ordering the bank to take money out of the defendant’s account and give it to you.
- Order of Garnishment regarding wages.
Order goes to the defendant’s employer, and they are forced to deduct
Requirement of class action
- Do the members of the class have similar factual and legal issues?
If they don’t, they can’t be in the class. Meaning did they all buy the defective product that they are claiming injury from. - Class must be big enough
At least 20 people, maybe. - Does the person(s) that is suing on behalf of everybody else, do they adequately represent them?
If you don’t make yourself available, you are not adequately representing your class. So, the class is thrown out or you are removed.
Class action
Small group of people is suing on behalf of a large group of people. 3 basic requirements
ADR – Alternative Dispute Resolution
When you have a dispute with someone but don’t want to go through the complicated court process. They solve it through arbitration or mediation
Benefits of Alternative Dispute Resolution (ADR)
-quicker resolution.
-lower: cost, time, money and aggravation.
-lessen strain of court system.
-get to work with specialized expertise.
-potential for compromise.
- Arbitration
You don’t have a court case, instead you go to arbitration. Which is typically like court but quicker, cheaper, more efficient and more streamline. Usually, they have industry experience. No depositions. Some discovery but limited. There is an arbitration hearing which is like a trail. At the end the arbitrators will decide. They’ll send you their decision which is binding.
- Mediation
Hire somebody (mediator) has no authority to decide the case but instead on the day of the mediation will attempt to negotiate a settlement. The only thing they can do is negotiate a settlement. They are usually successful.
When the mediator is unsuccessful then you go back into the court system and might end up with a trail.
Arbitrator vs Mediator (Exam)
Arbitrator has the authority to solve a case, mediator does not. Mediator can only negotiate a settlement.
